Citation Nr: 9904111
Decision Date: 02/12/99 Archive Date: 02/17/99
DOCKET NO. 94-13 488 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased (compensable) evaluation for
residuals of a back burn.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
perforated septum.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Hannan, Associate Counsel
INTRODUCTION
The appellant had active duty in the Army from September 1945
to December 1946; he also served as a member of the Merchant
Marine in Oceangoing Service from December 1944 to February
1945.
This matter originally came before the Board of Veterans'
Appeals (Board) on appeal from rating decisions by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida which denied a compensable evaluation
for residuals of a service-connected back burn and which
denied the reopening of claims for service connection for a
perforated septum and stomach ulcers on the basis that no new
and material evidence had been submitted which would serve as
a basis to establish service connection. The Board remanded
the case in June 1996 for additional development; as a result
of that development, the RO granted service connection in a
June 1997 rating decision for a duodenal ulcer and assigned a
40 percent evaluation, effective in October 1992. Thus, the
issue of service connection for ulcers is moot.
In the June 1997 rating decision, the RO also denied the
appellant's claim for service connection for a back disorder.
No notice of disagreement with the decision has been received
to date, and the issue is not before the Board at this time.
The issue of entitlement to service connection for a
perforated nasal septum was denied by the RO in St. Louis,
Missouri in a rating decision issued in February 1951, and
the appellant was notified of that rating decision that same
month. The appellant did not file a timely notice of
disagreement with that rating decision, and the decision
became final in February 1952. Glynn v. Brown, 6 Vet. App.
523 (1994). The appellant subsequently underwent nasal
septum surgery in February 1975. In April 1975, the RO
considered the associated medical evidence and then issued a
rating decision denying reopening of the nasal septum claim;
the appellant was notified of the denial in May 1975. In
July 1975, the appellant submitted a written statement in
which he reported having been treated in-service for a cinder
in the nose; this information was also noted in the February
1975 medical report. The RO sent a letter to the appellant
that same month telling him that, in the absence of new and
material evidence, their decision of May 1975 was continued.
He was also informed that he needed to submit a Notice of
Disagreement (NOD) to initiate appellate procedures, but he
did not complete the procedural steps necessary for an appeal
of that denial to reopen and, therefore, the July 1975
decision represents the last time that this perforated nasal
septum claim was finally disallowed on any basis. The
appellant's claim may be reopened only if new and material
evidence has been secured or presented since the July 1975
decision. Evans v. Brown, 9 Vet. App. 273 (1996); Glynn v.
Brown, 6 Vet. App. 523 (1994).
The issue of an increased rating for the back burn will be
addressed in the REMAND section which follows the ORDER
section in decision below.
FINDINGS OF FACT
1. All available, relevant evidence necessary for
disposition of the appellant's appeal has been obtained by
the RO.
2. The last final decision which addressed the reopening of
the appellant's claim of entitlement to service connection
for a perforated nasal section on any basis was the decision
of July 1975 which followed an April 1975 rating action of
which notice was also provided. The appellant was notified
of that decision in that same month and did not timely
complete the procedural steps required for an appeal.
3. Evidence received subsequent to the July 1975 decision
which denied the reopening of the appellant's claim of
entitlement to service connection for a perforated nasal
septum is cumulative and redundant and it does not, when
viewed with the other evidence on file, bear directly and
substantially upon the specific matter under consideration,
nor is it so significant that it must be considered in order
to fairly decide the merits of the claim.
CONCLUSION OF LAW
Evidence received subsequent to the July 1975 decision which
denied the reopening of the appellant's claim of entitlement
to service connection for a perforated nasal septum is not
new and material. Therefore, the claim for service
connection for a perforated nasal septum is not reopened.
38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R.
§§ 3.104, 3.156(a) (1998); Evans v. Brown, 9 Vet. App. 273
(1996); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Decisions of the Board are final, as are unappealed decisions
of the RO. 38 U.S.C.A. §§ 7104, 7105. In order to reopen a
claim there must be added to the record "new and material
evidence" which raises a reasonable possibility that the
claim can be allowed. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a). New and material evidence means evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a). The credibility of the evidence is presumed for
the purpose of reopening. Justus v. Principi, 3 Vet. App.
510 (1992).
In addition, the United States Court of Veterans Appeals
(Court) has held that the new and material evidence necessary
in order to reopen a previously and finally disallowed claim
must be secured or presented since the time that the claim
was finally disallowed on any basis, not only since the time
the claim was last disallowed on the merits. Evans v. Brown,
9 Vet. App. 273, 285 (1996).
As noted above, the July 1975 decision was the last time this
claim was initially disallowed on any basis and the evidence
considered by the RO in reaching the July 1975 decision
included the appellant's service medical records; written
statements submitted by the appellant; and reports of VA
hospitalizations and treatment. This evidence may be briefly
summarized.
The service medical records include the report of the entry
into service examination conducted in September 1945; under
ears, nose and throat (ENT) abnormalities, a large
nonsurgical perforation of the nasal septum was noted. The
November 1946 report of examination prior to discharge
indicated that there were no ENT abnormalities. There is no
mention in the records of any injury to the nose or treatment
of the perforated septum.
When the appellant submitted a VA Form 21-526 in January
1950, he made no mention of a perforated septum or any injury
to his nose in service. In January 1951, the appellant
underwent a VA medical examination. The examiner observed a
large perforation of the cartilaginous septum and stated that
such had been noted on the appellant's induction examination.
The examiner rendered a diagnosis of perforation of the nasal
septum, cause unknown. The appellant was noted to not have
voiced any ear, nose or throat complaints.
The appellant subsequently submitted another VA Form 21-526,
in February 1974. On that application he stated that he had
undergone a nose operation in 1946 and another in 1963.
Clinical records from VA treatment in January 1974 indicate
that the appellant sought treatment for frontal headaches and
a nasal discharge. He related having gotten the perforation
from a burn from a hot cinder. An ENT consultation reports
notes a history of septal perforation with one repair since
the 1940's. Physical examination revealed a two-centimeter
anterior septal perforation. In February 1975, the appellant
underwent a lateral rhinotomy at a VA hospital that included
the insertion of a silastic button to plug the perforation.
In July 1975, the appellant submitted a written statement in
which he stated that he was treated in-service for his nose
after he got a cinder in it while riding on a train.
The evidence added to the claims file after the July 1975
decision includes the report of a VA ENT clinic visit in June
1976, the report of a VA hospitalization for gastrointestinal
problems, copies of hospital and doctor bills and a letter
from a private physician indicating that he had been treating
the appellant for a back problem. The added evidence also
included the appellant's October 1992 written statement in
which he asked that his nose claim be reopened. In his
December 1992 NOD, the appellant stated that his nose was a
traumatic condition. The appellant also submitted a list of
physicians from whom he had received treatment over the
years, but this June 1997 list appears to mention only those
providers who treated his back and gastrointestinal
conditions.
The medical evidence of record does not, however, appear to
include a medical opinion as to the etiology of the
appellant's perforated nasal septum. There is no medical
opinion stating that the appellant's perforated septum is
directly related or indirectly related to any incident or
occurrence of the appellant's service, or that the perforated
nasal septum noted at induction was worsened by any incident
of service. Furthermore, the argument that the nasal
perforation had been caused by a burn from a cinder been
considered and rejected and the appellant has not provided
any additional medical opinion on that point.
The Board has considered each item of evidence which has been
added to the record since the July 1975 decision to determine
if it meets the test of being new and material. This
evidence includes some VA outpatient and inpatient treatment
records and various written statements from the appellant and
his representative. The Board finds that the additional
medical records relating to subsequent post-service diagnosis
and treatment of the appellant's perforated nasal septum fail
to provide any additional relevant evidence as to the issue
of whether his perforated septum was incurred in or related
to service, or worsened by any incident of service. That
additional treatment for the perforated nasal septum has been
rendered since the filing of the original claim sheds no
further light on the question of a causal or etiologic
relationship between said pathology and any incident relating
to service.
The Board finds that the medical records submitted subsequent
to the July 1975 decision fail to provide any additional
relevant evidence as to the issue of whether the appellant's
perforated nasal septum was incurred in, or related to, or
worsened by, service. Previous medical records which
included notations of the existence of the perforated nasal
septum before and after service were considered by the RO in
its July 1975 decision and found not sufficient to reopen the
appellant's claim. The medical records submitted since July
1975 provide no more definitive delineation of etiology or
causation of the appellant's perforated nasal septum.
Therefore, these records, while evidence not previously of
record, are not "material" evidence because they do not
shed any light on the existence of a medical nexus between
the appellant's service activities and his perforated nasal
septum. Therefore, the Board concludes that the medical
records submitted after July 1975 to be cumulative and are
not "new and material" evidence.
The assertions of the appellant that his perforated nasal
septum is related to a trauma he suffered in service, namely
a burn with a hot cinder, are not competent medical evidence
with regard to those issues. Layno v. Brown, 6 Vet. App. 465
(1994); Grottveit v. Brown 5 Vet. App. 91, 92-93 (1993).
Furthermore, even assuming that the appellant was burned in
the nose with a hot cinder, the appellant lacks the medical
expertise to enter a medical judgment as to any relationship
between the existence of a perforated septum or the worsening
of a perforated septum, and any in-service incident.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Likewise, any
statement of the appellant's representative as to the
etiology of the appellant's perforated septum is also
insufficient to establish a medical diagnosis. Id.
Therefore, the Board concludes that the appellant's written
statements, and the written statements of his representative,
are cumulative evidence. Moreover, the appellant's written
statements tended to restate contentions that were on file at
the time of the prior denial. The written statements of the
appellant and his representative iterate previous evidence of
record and are thus cumulative and therefore do not
constitute "new and material" evidence. See Reid v.
Derwinski, 2 Vet. App. 312 (1992).
Consequently, the evidence presented since the July 1975
decision is not new and material and the appellant's claim as
to service connection for a perforated nasal septum is not
reopened. Furthermore, the use of the doctrine of reasonable
doubt is inapplicable to issues of new and material evidence.
See Annoni v. Brown, 5 Vet. App. 463 (1993).
ORDER
New and material evidence not having been submitted to reopen
the appellant's claim of entitlement to service connection
for a perforated nasal septum, the benefits sought on appeal
are denied.
REMAND
The Court has held that a remand by the Court or the Board
confers on the veteran or other claimant, as a matter of law,
the right to compliance with the remand orders. Stegall v.
West, 11 Vet App 268 (1998). The Board remand of June 1996
asked for a skin examination of the appellant in order to
determine the nature and current severity of any residuals of
a back burn, to include scars. Specifically, mention was to
have been made as to size, appearance, or any other
manifestations of the disability as defined by appropriate
rating criteria as outlined in 38 C.F.R. Part 4, § 4.118.
The report of the skin examination conducted in October 1996
does not indicate whether or not the dry atrophic skin
observed to cover most of the appellant's back was a residual
of the second degree burn that the service medical records
show the appellant suffered in August 1946. There was no
clear indication if the area involved exfoliation, exudation
or itching. Furthermore, no measurement of the area was
given, nor was there any discussion of whether or not the
burn area was tender or painful or whether or not the
appellant suffered from any loss of function due to the
residuals of the burn, if any.
The Board also directed the RO to consider whether the
appellant was entitled to an extraschedular evaluation under
38 C.F.R. § 3.321 for his service-connected back scar
pathology. However, no such analysis was performed.
Given the guidance offered by the court in Stegall, the case
must again be remanded. In view of the foregoing, this case
is REMANDED for the following actions:
1. The appellant should be afforded a VA
skin examination to determine the nature
and current severity of any residuals of
a back burn, to include scars.
Specifically, clear descriptions should
be given as to size, appearance, or any
other manifestations, including
tenderness, pain, exudation, exfoliation,
itching or loss of function, of the
disability as defined by appropriate
rating criteria as outlined in 38 C.F.R.
Part 4, § 4.118. Subjective complaints
and objective findings should be legibly
recorded in detail. All indicated tests
and photographs should also be
conducted/taken. The claims file should
be made available to the examiner for
review before the examination to
facilitate study of this case.
2. Care should be taken to ensure that
the appellant receives proper notice of
the scheduling of any examination. In
the notice to report for the above-
described examination, the appellant
should be advised of the effect of his
failure to report for examination under
38 C.F.R. § 3.655. If the appellant
fails to report for the scheduled
examination, the RO should obtain copies
of the notice to the appellant of the
examination for inclusion in the claims
folder.
3. Thereafter, the RO should adjudicate
the issue of a compensable rating for the
residuals of the back burn and the RO
should consider the applicability of
38 C.F.R. § 3.321(b)(1). See Floyd v.
Brown, 9 Vet.App. 88 (1996).
When this development has been completed, and if the benefits
sought are not granted, the case should be returned to the
Board for further appellate consideration, after compliance
with appropriate appellate procedures. Consideration of the
Court's holding in the Floyd case should be evidenced by this
readjudication. It is requested that the supplemental
statement of the case specifically set forth the reasons and
bases for the decision. No action by the appellant is
required until he receives further notice. The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition warranted in this case, pending
completion of the requested development.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
Department of Veterans Affairs